Two issues are presented for our determination:
(1) Was the legal duty of the defendant to plaintiff's car one of an owner to an invitee or of an owner to a *Page 334 licensee; and (2) whichever the duty, was there evidence to go to the jury that it had not been fulfilled?
Plaintiff's automobile was parked on the premises of defendant by Montell Bird, plaintiff's son, who came regularly to defendant's business to take tests of milk. The car was parked parallel to one of defendant's buildings used as a garage, in front of one of the several garage doors. Attached to the wall of the building and extending out over the area occupied by plaintiff's car was a heavy canopy which, on the occasion in question, shortly after plaintiff's car was parked underneath, collapsed, injuring plaintiff's car as well as several other vehicles parked in the same location but past the garage door.
That Montell Bird went to defendant's place of business as an invitee is not denied. Nor is it denied that he frequently rode to work on a bicycle which he placed just inside the garage where the canopy collapsed. Almost daily he and many other persons passed alongside of said wall and beneath the canopy. Furthermore, there was evidence before the court that Montell Bird had previously parked the cars in which he rode to work alongside of that wall and that other cars belonging to employees were parked in the same place. This was countered by testimony for the defense that bulletins had been issued against parking in that place, though it was admitted that such space was sometimes used by company employees in disregard of such rules. However, it does not appear from the evidence that Bird had been instructed not to park his car there, nor that signs had been placed where he could see them, nor that he had any knowledge of the bulletin. Although Bird had parked in front of a garage door, the evidence showed that it was at a time when the cars using the garage were out on deliveries and that his car would be removed before any returned.
The principle which governs this case is as follows: Where custom, necessity or other circumstances are such that an invitee may reasonably presume that the invitation held out *Page 335 to him to come on the premises includes one's vehicle which he might ordinarily be expected to use in reaching the premises, he may place the vehicle on such portion of the premises during the period of his inviteeship as is not specifically or by apparent circumstances excluded from the scope of the invitation.
The duty of the property owner toward a traveler on his property depends on the legal status of that traveler in respect to the property. The traveler may bear toward the owner any relationship from pure trespasser to an admitted invitee. The gradations run from trespasser through tolerated trespasser, mere licensee, encouraged licensee to invitee. Factual situations on the border lines between these classifications make possible the guiding of the relationship in these border-line cases into one classification or the other depending largely on what is thought to be demanded by the dictates of justice. The owner owes no duty to a trespasser except that of refraining from committing active negligence when he is aware of the trespasser's presence. The keeping of a spring gun or trap is classed as active negligence because it is as if the owner himself had operated such apparatus against the trespasser. They were set up for that purpose. The owner owes no duty to keep his property safe for trespassers or mere licensees. But if the owner has encouraged persons to come on the premises by enticement, allurements or inducements he has a duty beyond that of refraining from mere active negligence. Such is the case of children allured by an attractive "nuisance." And in the case of invitees — persons coming on the property for the mutual benefit of the person and the owner — the latter has the duty to exercise reasonable care in keeping his property safe, as distinguished from the case where a person comes on the property for purposes not in any way having to do with the owner — i.e. trespassers and mere licensees. An examination of many cases will reveal that when the property owner has maintained on his property a condition inherently or patently *Page 336 dangerous and the traveler on the property is there not wholly without reason or excuse, the courts have attempted if possible to guide the factual situation into the classification which imposes on the owner the duty toward the traveler which will require an abatement as to him of such patently or inherently dangerous condition. Thus there was a judicial manipulation of these two variables of relationship of the traveler and the type of negligence of the owner or perhaps more accurately stated, the factual situations were guided wherever possible into the conceptual framework which would exact of the owner the duty which under all the facts of the case seemed to fulfill the requirements of justice. And the courts have not indulged in great squeamishness in keeping the matter of the owner's liability from the jury by differentiating in borderline cases between an invitee and a licensee in order that the negligent owner might reap the benefit of a happy chance that his neglect injured a licensee rather than an invitee. Unless the presence of the victim itself is negligence the negligence has been purely that of the owner. And when, for example, the unfortunate victim arises amid the rubble of a dilapidated wall which fell due to the neglect of its owner, the courts have not indulged in fine distinctions to exculpate from responsibility the owner who maintains such a condition. Barry v. New York Central H.R.R.Co., 1883, 92 N.Y. 289, 44 Am. Rep. 377; Sweeny v. Old Colony Newport R. Co., 1865, 10 Allen, Mass., 368, 87 Am. Dec. 644;Herrick v. Wixom, 1899, 121 Mich. 384, 80 N.W. 117, 81 N.W. 333; Fitzpatrick v. Cumberland Glass Mfg. Co. 1898, 61 N.J.L. 378,39 A. 675; Union Stock Yards Transit Co. v. Rourke, 10 Ill. App.? 474; Palmer v. Gordon, 173 Mass. 410, 53 N.E. 909, 73 Am. St. Rep. 302.
Returning to the principle which governs this case the matter ultimately resolves itself into a determination as to whether the place where the plaintiff put his car was specifically or by apparent circumstances excluded from the implied invitation. There is no evidence that the plaintiff *Page 337 had notice of any specific exclusion. The entry way to a garage might ordinarily be considered a place excluded from the scope of the invitation. It would ordinarily be an "apparent circumstance." But the evidence that others had used that portion of the premises in the same way without apparent objection was evidence that the place which might be ordinarily considered objectionable for parking was not so.
Certainly during the period of his going to work at defendant's plant, Bird had cause to believe that he was not barred from passing alongside the wall in question, and that it was a reasonably safe place. Had the injury been to Bird personally, there could be no doubt of liability, as his status was definitely that of invitee. The fact that it was his car that was injured, when it was occupying premises which Bird and many others had used in the same way, does not place the car in a different status from Bird. There was not such a deviation of his duty to exercise reasonable care. The canopy which fell extended past the place in the wall where the door was located. It would seem to be indulging in niceties of distinction not comporting with the actualities of human conduct to hold that cars stationed along the wall past the door and injured by that part of the canopy were in the position of invitee cars but plaintiff's a few feet along injured by the same canopy was a licensee car. We conclude therefore that defendant was under a duty to use "that degree of care and watchfulness to protect against injury that is commensurate with the probability of persons making the accustomed use of such premises." Chicago, R.I. P.R. Co. v.McCleary, 175 Okla. 347, 53 P.2d 555, 557.
Having found the legal duty of the defendant toward the car in this case to be one of an owner toward an invitee, we must determine whether the trial court could have found that there was negligence on the part of defendant by reason of which the damages to the car may be assessed against it. The wall was exclusively and completely within the *Page 338 control of the defendant. The injury was one which would not occur in the ordinary course of things, if the one having control used the proper care. The case is one, therefore, in which the doctrine of res ipsa loquitur would apply, thus making out a prima facie case for the plaintiff. The burden of going forward with the evidence then shifted to defendant to show that it was not guilty of negligence. White v. Pinney, 99 Utah 484,108 P.2d 249; Loos v. Mountain Fuel Supply Co., 99 Utah 446,108 P.2d 254. To this end evidence was introduced by defendant showing an inspection of the premises about three weeks before the wall collapsed, and that accumulations of snow were shoveled from the canopy. The trial court was at liberty to consider the adequacy of the inspections and the competence of those who made them. In weighing the evidence, the court could properly consider the fact that there was no evidence to show any effort to determine how much weight the canopy could stand, and that since it was admitted that there was some snow and ice on the canopy at the time of the collapse, sufficient care had not been exercised to remove such weight before it became excessive. It is clear that the trial court did not consider the precautions taken by defendant adequate to constitute reasonable care in the light of the age of the building, the manner of construction of the canopy, the frequency of snowfalls just prior to the accident and the fact of the collapse of the wall.
In Goldstein v. Levy, 74 Misc. 463, 132 N.Y.S. 373, 374, the court said:
"Evidence tending to show that inspections were carefully and regularly made is insufficient to establish that the accident itself was not caused by the defendant's negligence. The circumstances and character of the occurrence were such as to call for the application of the doctrine of res ipsa loquitur. The accident was unusual. The plaintiff could not be expected to define its exact cause. If the inspections which the defendant claimed were made had been carefully made, it is not inconceivable that the defect which caused the shade to fall might have been discovered. If one may be held liable for the fall of a wall upon a pedestrian (Mullen v. St. John, 57 N.Y. 567, 15 *Page 339 Am. Rep. 530), or an inn-keeper for the fall of plaster from a ceiling upon a guest (Morris v. Zimmerman, 138 A.D. 114,122 N.Y.S. 900), we can see no good reason why the same principle which was applied in those cases should not be held applicable here."
See, also, J.C. Penney Co. v. Forrest, 183 Okla. 106,80 P.2d 640; Angerman v. Edkemon, 76 Utah 394, 290 P. 169, 79 A.L.R. 40; Brumhall v. Sutherland, 110 Cal. App. 10,293 P. 672.
We cannot say, in view of the fact that the doctrine of res ipsa loquitur applies here, that there was no substantial evidence to support the trial court in its finding that the damages suffered by plaintiff's automobile were a direct and proximate result of the careless and negligent maintenance of an unsafe, unsound and dangerous wall.
The evidence of the plaintiff under the rule of res ipsa loquitur and that submitted by the defendant properly went to the jury under the rules laid down in the case of White v.Pinney, supra, Loos v. Mountain Fuel Supply Co., supra,Romney v. Covey Garage, 100 Utah 167, 111 P.2d 545.
For the reasons given herein, I dissent. The judgment of the trial court should be affirmed.